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Making the Internet Better, One Law at a Time

Naturally, the day after my post about removing an old post so that a person isn’t forever tainted by his worst experience, Walter Olson twits about the European Commission being set to adopt “formal rules” to create a “right to be forgotten” on the internet.

According to the BBC, the European Commission is apparently set to adopt formal rules guaranteeing a so-called “right to be forgotten” online. As part of the Commission’s overhaul of the 1995 Data Protection Directive, this new regulation will mandate that, “people will be able to ask for data about them to be deleted and firms will have to comply unless there are ‘legitimate’ grounds to retain it,” the BBC reports.

While the concern underlying this initiative may be real, and indeed, may well be something to which any reasonable person is sympathetic, formalizing it into a Rule, creating a procedure which, by definition, must bear a consequence if it isn’t to be ignored, and putting the judgment into the hands of some well-meaning bureaucrat with a checklist in a basement office, will not improve the internet.

Censorship, even when well intended, is censorship. Theirer points out what is well-known to anyone paying reasonably close attention to the internet, that efforts to cleanse it of information don’t tend to work well.

Thus, for a “right to be forgotten” to work, a more formal and robust information control regime will need to be devised to censor the Net and make it “forget”about the digital footprints we left online. Will the DMCA’s “notice and takedown” model be applied? Beyond the chilling effect associated with dragnet takedowns of online information, it’s unlikely that approach will really work. Keep in mind, this isn’t as simple as just telling large social media operators to delete information on demand. The reality is, as computer scientist Ben Adida notes in his essay “(Your) Information Wants to be Free,” the same forces and factors that complicate other forms of information control, such a copyright and speech restrictions, also complicate the protection of facts about you. “[I]nformation replication doesn’t discriminate: your personal data, credit cards and medical problems alike, also want to be free. Keeping it secret is really, really hard,” Adida correctly notes.

What is not clear is whether Thierer appreciates the struggle this will cause over how “robust” the control regime should be. When asking nicely doesn’t work, the next cries will be for monetary sanctions. When they don’t work, whether because the information replicates faster than echecks can be sent, incarceration will be required. And so on. When the European Commission can’t clean up the outlier colonies like the United States and the island of criminals, a Super Internet Police Force will be required to roam the planet in search of Somalian internet Pirates.

Of course, the offshore pirates will be a step ahead of any official effort to shut them up (or cost them money), while ordinary folks with a computer and a home address are easy game for regulators. Once legislators in Kentucky realize there is airtime to be had by promoting the new, popular censorship, complete with a cool biblical quote like “turn the other cheek,” a wave of “right to be forgotten” laws will sweep fly-over land and crash against both coasts, east and left.

Perhaps our beloved and admired legal scholars will jump into the fray to lead the challenge against censorship? Not likely, given that under the leadership of Danielle Citron, they’ve already staked their claim at the head of the censorship line, demanding the death of mean speech online under the guise of Cyber Civil Rights. They adore free speech, as long as they can shut down anyone who says something they don’t like.

But, you ask with squinted eye, are you not an overbearing advocate of censorship yourself, arguing that the internet is not a truth-free zone? Ah, no. Just as I’ve advocated for the exercise of restraint on our own part when it comes to perpetuating negative posting after the harm outweighs the need, I advocate that lawyers adhere to our own ethical constraints of honesty and integrity.

The rule isn’t an internet rule, though the battles are now being fought on the web because that’s where the bad stuff is happening, but a rule for lawyers. And I don’t advocate for the imposition of fines and imprisonment, or even disbarment, as employing speech to counter speech. Bad actors are shamed in the same manner as the wrong they commit.

And what of Twitter, having just announced its intention to censor twits in countries where the contents are illegal?

The effort underscores thorny issues for Internet companies as their websites become more global and interconnected among different countries, and as they must cooperate with diverse views on Internet content control. For websites like Twitter as well as social-networking site Facebook, this has meant being blocked in countries like China where controls are more aggressive.

While we may think of Twitter as merely a medium for our communications, it’s still a business enterprise concerned with survival and profit. It’s easy to forget that it’s not our toy, but someone else’s enterprise. We just supply the grist that keeps it running. While using Twitter is our choice, censoring it is twitter’s, just as deleting comments here is mine rather than the commenter’s.

It’s not internet censorship, but self-censorship, and the misguided sense of universal ownership interest in the medium distracts us from the reality that Twitter needs to do what Twitter needs to do. We may not like it at all, and we have the absolute right not to ever twit again in protest to Twitter’s decision, but it remains Twitter’s decision.

In the early days of the internet, there was a fierce pride in keeping grocery clerk’s hands off. There was no tolerance for outside regulation, and the denizens of the virtual world policed themselves, often with harsh attacks on those who failed to adhere to the etiquette or norms of the web. Dishonesty was dealt with harshly. Idiocy was immediately called out. It was the wild west, but there was no shortage of sheriffs to keep things in line.

Of course, those Halcyon Days are over. As n00bs came online, they didn’t understand the norms and felt entitled to recreate the etiquette to suit their sensibilities. Every day, thousands of new people hook their computer up, and immediately decide things need to change. And they have and continue to change, but not sufficiently to meet the needs of the lowest common denominator. That’s why the clamoring for rules began, and why the grocery clerks demand the void be filled.

Soon, there will be a “right to be forgotten,” except by the government. Then there will be a right to not have one’s feelings hurt. Shortly thereafter, the rule will prohibit words of greater than three syllables, or posts that require thought. And this will “fix” the internet, and the internet will be all better.

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6 comments on “Making the Internet Better, One Law at a Time”

Great post. But I have to take issue with this one small point: “It’s not internet censorship, but self-censorship, and the misguided sense of universal ownership interest in the medium distracts us from the reality that Twitter needs to do what Twitter needs to do.”

Twitter is filtering posts because laws require them to. This *is* censorship. It’s not Twitter doing the censoring, but it’s government censorship.

I see your point, but Twitter seeks to enter “markets” (to us, they’re countries, but to Twitter, they’re just markets) with different laws and cultural norms and avoid potential problems they fear might present problems. Twitter hasn’t yet been censored, meaning that the content has been removed, but anticipates this would interfere with their market penetration. Rather than be censored, find themselves in the midst of a problem, including potential prosecution, or be shut out, they’ve chosen to pre-empt the problem by censoring their content (which happens to be the twits of others). It could be that they stand firm and fight it out, or stand firm and risk being shut out, or they can take it upon themselves to avoid the problem.

Is this censorship or self-censorship? It’s a fair question. As long as they do it to themselves, my view is that they’ve made their own choice to avoid any potential problem.

If you “self-censor” out of a reasonable, well-founded fear of government-enforce consequences if you don’t, that’s censorship.

Iran has a law against trying to convert people to Christianity. Missionaries there generally avoid trying to convert people to Christianity both because they fear prosecution and out of humanitarian concerns that the government of Iran might shut their organizations out and they’d no longer have access to the people who need aid. Is this “self-censorship”?

I agree that it’s self-censorship if the fear of government-enforce consequences is unreasonable. But if a government causes reasonable fear that leads people not to say what they otherwise would say, that’s real censorship.

The only purpose for the analogy was to clarify what I mean by: If you “self-censor” out of a reasonable, well-founded fear of government-enforced consequences if you don’t censor, that’s government censorship.

I can’t tell from your response whether you agree with this claim, disagree with this claim, or think it doesn’t apply to Twitter.

Governments don’t have to burn books or kill dissidents to censor them. They just have to give people a well-founded fear of severe government actions against them if they don’t “self-censor”.

Scott H. Greenfield

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